Editorial Committee of the Cambridge Law Journal

Laying down the Law: Mysticism, Fetishism, and the American Legal Mind by Pierre SchlagReview by: Matthew H. KramerThe Cambridge Law Journal, Vol. 56, No. 3 (Nov., 1997), pp. 649-651Published by: Cambridge University Press on behalf of Editorial Committee of the Cambridge LawJournalStable URL: http://www.jstor.org/stable/4508392 .

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to re-consider their formalistic and sterilising view that European legal traditions have been converging a little more closely with every new directive concocted by Brussels bureaucrats eager to justify their generous tax-free salaries?

Of the other texts collected in this book, one deals with criminal behaviour in Japan (Setsuo Miyazawa), one with patients' rights in Japan (Eric Feldman), one with the management of public prosecution in France and Italy (Carlo Guarieri), and one with the impact of foreign legal cultures on the creation of moder British copyright law (Brad Sherman). Yet another paper is concerned with "the devaluation of human gender and non-human nature" in Western legal cultures (Hanne Petersen). Seemingly elusive connections amongst this eclectic array of themes and perspectives are elucidated in the editor's ampliative introduction.

PIERRE LEGRAND

Laying.Down the Law: Mysticism, Fetishism, and the American Legal Mind. By PIERRE SCHLAG. [New York and London: New York University Press. 1996. x, 188 and (Index) 7pp. Hardback $27-50 net. ISBN 0-8147- 8053-9.]

EXACTLY why Pierre Schlag chose to publish this collection of essays is unclear. Laying Down the Law is slight in several respects: in length, page size, and analytical rigor. Schlag has elsewhere published some articles-such as a quite impressive analysis of the role of transaction costs in law-and-economics- that are intellectually much more substantial than any of the pieces in this volume. Hence, one cannot help feeling puzzled by his decision to put together a book made up of several jejune essays.

Schlag's ten chapters inveigh (sometimes repetitively) against various aspects of law and legal thought. The chief target of those chapters is designated as "liberal humanism", a label that might erroneously be taken to indicate a set of positions similar to the positions adopted by liberal political philosophers. Inclined to characterise antinomian discontent as critical thinking tout court, Schlag submits that liberal ideology is a set of shackles from which we must strive to free ourselves. Legal discourse shaped by liberal tenets "assume[s] automatically ... that it is authored by and addressed to an autonomous, coherent, integrated, rational, originary self, receptive to moral argument through a medium of language that is itself weightless and neutral" (p. 25). In response, Schlag repeatedly asserts that we are not really "autonomous, rational, morally competent individuals who are having a meaningful, important, and effective discussion about how society or some subdivision thereof should be organized" (p. 40). Indeed, he maintains that liberalism's credence in the autonomy and rationality of the self has facilitated "the operation, performance, reproduction, and proliferation of bureaucratic practices and institutions" (p. 35).

Schlag's assault on the integrity of the self and his tracing of connections between liberal thought and bureaucratic domination are two of the central preoccupations in Laying Down the Law. Other prominent themes in the book will not surprise anyone who is familiar with the American critical legal studies movement. Schlag attacks the notion of transcendent values, and criticises the tendency of legal scholars to identify themselves with judges; he likewise seeks to expose the intellectual hollowness and coercive violence of law. Nearly all of

to re-consider their formalistic and sterilising view that European legal traditions have been converging a little more closely with every new directive concocted by Brussels bureaucrats eager to justify their generous tax-free salaries?

Of the other texts collected in this book, one deals with criminal behaviour in Japan (Setsuo Miyazawa), one with patients' rights in Japan (Eric Feldman), one with the management of public prosecution in France and Italy (Carlo Guarieri), and one with the impact of foreign legal cultures on the creation of moder British copyright law (Brad Sherman). Yet another paper is concerned with "the devaluation of human gender and non-human nature" in Western legal cultures (Hanne Petersen). Seemingly elusive connections amongst this eclectic array of themes and perspectives are elucidated in the editor's ampliative introduction.

PIERRE LEGRAND

Laying.Down the Law: Mysticism, Fetishism, and the American Legal Mind. By PIERRE SCHLAG. [New York and London: New York University Press. 1996. x, 188 and (Index) 7pp. Hardback $27-50 net. ISBN 0-8147- 8053-9.]

EXACTLY why Pierre Schlag chose to publish this collection of essays is unclear. Laying Down the Law is slight in several respects: in length, page size, and analytical rigor. Schlag has elsewhere published some articles-such as a quite impressive analysis of the role of transaction costs in law-and-economics- that are intellectually much more substantial than any of the pieces in this volume. Hence, one cannot help feeling puzzled by his decision to put together a book made up of several jejune essays.

Schlag's ten chapters inveigh (sometimes repetitively) against various aspects of law and legal thought. The chief target of those chapters is designated as "liberal humanism", a label that might erroneously be taken to indicate a set of positions similar to the positions adopted by liberal political philosophers. Inclined to characterise antinomian discontent as critical thinking tout court, Schlag submits that liberal ideology is a set of shackles from which we must strive to free ourselves. Legal discourse shaped by liberal tenets "assume[s] automatically ... that it is authored by and addressed to an autonomous, coherent, integrated, rational, originary self, receptive to moral argument through a medium of language that is itself weightless and neutral" (p. 25). In response, Schlag repeatedly asserts that we are not really "autonomous, rational, morally competent individuals who are having a meaningful, important, and effective discussion about how society or some subdivision thereof should be organized" (p. 40). Indeed, he maintains that liberalism's credence in the autonomy and rationality of the self has facilitated "the operation, performance, reproduction, and proliferation of bureaucratic practices and institutions" (p. 35).

Schlag's assault on the integrity of the self and his tracing of connections between liberal thought and bureaucratic domination are two of the central preoccupations in Laying Down the Law. Other prominent themes in the book will not surprise anyone who is familiar with the American critical legal studies movement. Schlag attacks the notion of transcendent values, and criticises the tendency of legal scholars to identify themselves with judges; he likewise seeks to expose the intellectual hollowness and coercive violence of law. Nearly all of

C.L.J. C.L.J. Book Reviews Book Reviews 649 649

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The Cambridge Law Journal

his positions are presupposed and fervently asserted, rather than substantiated through arguments that might convince people who are not already committed to those positions.

Some passages in Laying Down the Law are clever or humorous. For example, Schlag quite aptly ridicules James Boyd White's grandiloquent discussions of the US Supreme Court's opinions, and he makes some amusing comments on the absurdly heavy footnoting in American law-review articles. (He ought to have considered whether the dilettantism of many such articles is due partly to the astounding fact that most American law reviews are edited by students.) Also arresting are some of Schlag's analogies, such as a complicated comparison between the American Constitution's First Amend- ment and sidewalks (i.e., pavements). Moreover, his riposte to Ronald Dworkin's brusque dismissal of critical legal studies is quite pertinent.

In most respects, however, Schlag's book is disappointing. Among the chief shortcomings are a penchant for hyperbole and straw men, some slipshod uses of technical philosophical terms, a preference for proclamation in lieu of argumentation, an occasional belabouring of obvious points, and a tendency to attribute to relativism the incapacitation of nihilism.

Schlag's fondness for hyperbole and straw men should be quite apparent from some of the quotations above. His descriptions of liberal doctrines bear startlingly little relation to the positions actually espoused by liberal political philosophers (of the past or present). His remarks on judicial outlooks are equally unfounded. For example, he declares that "[t]he judge ... believes, as a matter of course, that 'law' has certain obvious and nonproblematic regulative relations to its field of application-relations that bear names like 'deterrence' or 'facilitation' .. . This is someone who believes that judicial concepts like specific intent or linear causation or individual autonomy are valid, not merely as judicial concepts, but as descriptions of social life" (p. 140). Schlag offers no evidence or citations to support these implausible claims about the beliefs of judges. Perhaps he would contend that his statements pertain to the judicial role rather than to the conscious convictions of any individuals. Such a reply would not rescue his assertions from implausibility, since the general circumspection that attaches to the judicial role-the credo of judicial restraint-is based partly on a rejection of the naive beliefs that are scornfully recounted in this quotation.

Schlag quite often exhibits a shaky grasp of technical philosophical and theological parlance. For example, his frequent use of the term "ontological" (especially in his third chapter) is slapdash; moreover, on almost every occasion, the term is utterly superfluous. His use of the word "eschatology" is similarly loose and gratuitous. Even worse is his use of the terms "transitivity" and "transitive" (especially in his seventh chapter). Schlag appears to think that "transitivity" is synonymous with "generalisability". In fact, only some transitive relations are straightforwardly generalisable. Some transitive rela- tions are not always generalisable, and some others are never subject to wholesale generalisation. Let us first consider an example where transitivity consorts with full generalisability. If X is a sibling of Y, and if Y is a sibling of Z, then not only is X a sibling of Z, but also Z and Y are siblings of X, and Z is a sibling of Y. Let us now consider an example where generalisability is not necessarily present. If X is a brother of Y, and if Y is a brother of Z, then, although X must be a brother of Z and although Y must be a brother of X, Z need not be a brother of X and Y. Let us finally take an example where generalisability cannot be present. If X is taller than Y, and if Y is taller than Z, then X is taller than Z; but Y cannot be taller than X, and Z cannot be

650 [1997]

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taller than X or Y. Thus, since transitive relations are often not generalisable relations, the use of "transitivity" as a synonym or virtual synonym for "generalisability" is misguided.

Schlag's disdain for sober argumentation is apparent not only in his tendency to assert rather than to reason, but also in some explicit pronounce- ments. The most notable of these occurs in his comments on a report about values in the legal profession: "The point is not to render a moral or ethical judgment on our ways of talking about values, but rather to achieve an appreciation of the aesthetic inadequacy of the way in which this talk of 'values' is conducted. The point is not to formulate a 'reason', an 'objection', or an 'argument', but to develop an aesthetic capacity, an intellectual competence, a quality of mind, to appreciate the utterly degraded form of life exemplified in the MacCrate report's re-presentation of values" (pp. 58-59, emphasis deleted). Pace Schlag, one can hope that jurisprudence will remain a site of competing arguments and will not become a domain of supercilious sensibilities.

Gripped by the notion that the vast majority of his contemporaries are severely deluded about the realities of social life, Schlag feels a need to trumpet the obvious. For instance, he informs his readers that "it is important to understand that your automobile insurance adjuster is not simply some updated version of the eighteenth-century individual humanist subject. Even though the insurance adjuster will quite often engage you in normative talk ... he is unlikely to be terribly receptive or susceptible to any authentic normative dialogue. His normative competence, his normative sensitivity, is scripted somewhere else" (p. 38). Few people who read these sentences will feel that scales have fallen from their eyes. Nor will anyone with a mite of common sense need to be told that lawyers are confused if they "believe that, in virtue of their advocacy of reason, goodness, or moral wonderfulness, they are themselves reasoned, good, or morally wonderful. This kind of immensely self-flattering belief is quite widespread among legal thinkers. It is also a non sequitur" (p. 145, emphasis deleted). Similarly unrevelatory revelations abound in Laying Down the Law.

When discussing the renowned literary critic and legal theorist Stanley Fish (especially in Chapter 6), Schlag repeatedly insists that Fish's relativistic notion of "interpretive communities" does not lend itself to being expounded. In fact, that notion can perfectly well be explicated, so long as the explication does not present itself as absolute or exhaustive. When Fish insists that there is no point of view without a point of view, and when he thus insists that all explanatory and descriptive accounts are rooted in contingent sets of assumptions, he plainly leaves room for such accounts; he points to their relativity, not to their impossibility.

In short, the meritorious passages in this book are clearly outnumbered by the weak passages. If Schlag wants to commend his positions and theses to people who are not already enamoured of them, his writings will have to become more rigorous and less self-indulgent. Let us hope that he returns to the careful argumentation of which he is quite clearly capable.

MATTHEW H. KRAMER

Book Reviews C.L.J. 651

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